Elder v. DOWD, WARDEN, ETC.

Emmert, J.

This is an appeal from a judgment for the appellee who was defendant to a complaint for writ of habeas corpus. We overruled appellee’s motion here to dismiss the appeal, and the cause has been briefed upon the merits.

Appellee contended in the motion to dismiss that appellant had nothing to present, since he had not filed any motion for a new trial in the trial court. In habeas corpus proceedings it has been the practice in this state to file motions for new trial when a party suffers an adverse decision. See Scott v. Scott (1949), 227 Ind. 396, 86 N. E. 2d 533; Gluff v. Rouls (1950), 228 Ind. 186, 91 N. E. 2d 176. In the latter case we held that alleged errors in the trial court on refusal to hear evidence must first be presented in the trial court in a motion for a new trial. If the appeal is to be prosecuted from a final judgment, errors which could be presented by a motion for a new trial in other actions must be presented by a motion for a new trial in a habeas corpus action before they will be considered on appeal. See In re Van Sciever (1894), 42 Neb. 772, 60 N. W. 1037, 47 Am. St. Rep. 730; McQueen v. Jones (1949), 150 Neb. 853, 36 N. W. 2d 271; Johnson v. Best (1943), 156 Kan. 668, 135 P. 2d 896; 39 C. J. S. 715, 716, §113; 29 C. J. 188, 189, §216. However, this court did acquire jurisdiction of the appeal when the transcript and assignment of errors was filed with the clerk of this court. Rule 2-2. Appellant asserts he was denied rights under the Indiana Constitution, and for this reason we will consider his appeal on the merits. Lobaugh v. State (1948), 226 Ind. 548, 82 N. E. 2d 247; Wilson v. State (1943), 222 Ind. 63, 51 N. E. 2d 848.

Appellant contends that §9-2250, Burns’ 1942' Replacement (Supp.), vests judicial functions in an administrative board in violation of Article 3, and §1 of Article 7 of the Indiana Constitution. This statute provides:

“Any prisoner who has been sentenced and committed ‘to the Indiana State Prison, Indiana Women’s Prison or the Indiana Reformatory, and has been released upon parole therefrom and while at large upon such parole said prisoner shall commit another crime and upon conviction thereof shall be sentenced anew to one of the institutions named herein, said prisoner shall be subject to serve the second sentence after the first sentence is served or annulled and the second sentence is to commence from the termination of his or her liability upon the the first or former sentence.” Section 9-2550, Burns’ 1942 Replacement (Supp.), [Acts 1947, ch. 61, §1, p. 205].

The record here discloses that on July 30, 1945, appellant was convicted of burglary in the second degree and sentenced to imprisonment in the Indiana State Prison for a term of from two to five years, and thereafter, and during the maximum term of five years, appellant was paroled. While on said parole, on July 10, 1947, he was convicted of second degree burglary by the Vanderburgh Circuit Court, and sentenced to the Indiana State Prison for a term not less than two nor more than five years. On August 22, 1947, appellant was ordered by the Board of Trustees of the Indiana State Prison to serve the remainder of his first sentence before commencement of the second sentence.

We cannot agree that appellant began serving the second sentence on the day it was pronounced and entered by the Vanderburgh Circuit Court. In Dowd v. Basham (1954), 233 Ind. 207, 116 N. E. 2nd 632, 635, we construed §9-2250, Burns’ 1942 Replacement (Supp.), and in an opinion by Chief Justice Draper, said:

“The terms of a sentence must be read, construed, and executed in the light of applicable statutory provisions. In the situation presented here the law fixed the time when appellee’s service of the sentence pronounced on October 10, 1947, should begin to run. It fixed that time as the date upon which the appellee’s liability upon the former sentences terminated. The punishment adjudged by the court under the earlier sentences was for the maximum term prescribed by the statute. The earlier termination of it was a matter within the discretion of the board of trustees, and the discretion of the board in that respect is not subject to the control or supervision of the courts. The power to shorten a prisoner’s period of service under an indeterminate sentence is not judicial. It is a ministerial or administrative power with which the court has no concern. Miller v. The State (1898), 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109; Terry v. Byers (1903), 161 Ind. 360, 68 N. E. 596; State v. Page (1899), 60 Kan. 664, 57 P. 514.”

By operation of law §9-2250, Burns’ supra, became a part of the second judgment.¹ Woodward v. Murdock (1890), 124 Ind. 439, 444, 24 N. E. 1047; Miller v. State (1898), 149 Ind. 607, 617, 49 N. E. 894, 40 L. R. A. 109; Mellot v. State (1942), 219 Ind. 646, 40 N. E. 2d 655; State v. Rardon (1943), 221 Ind. 154, 46 N. E. 2d 605; State ex rel. Reed v. Howard (1946), 224 Ind. 515, 517, 69 N. E. 2d 172; Canfield v. Commissioners (1937), 280 Mich. 305, 309, 273 N. W. 578; People ex rel. Newton v. Twombly (1920), 228 N. Y. 33, 35, 126 N. E. 255.

The action by the Board of Trustees of the prison added nothing to the effect of the statute, since the statute was self-executing. Dowd v. Basham (1954), 233 Ind. 207, 116 N. E. 2d 632, supra; Canfield v. Commissioners (1937), 280 Mich. 305, 273 N. W. 578, supra. The Act is constitutional, and the trial court correctly found for the appellee warden.

Judgment affirmed.

Flanagan, J., concurs.

Draper, C. J., concurs in result with separate opinion.

Gilkison, J., concurs in part with separate opinion.

Bobbitt, J., concurs with opinion.

1 . “The law allowing him credit for good time entered into the judgment as if written therein, and, therefore, by the very language of the judgment the appellant’s time expired on the 13th of December, 1889.” Woodward v. Murdock (1890), 124 Ind. 439, 444, 24 N. E. 1047.

“And so here the reformatory act may be read into the judgment whenever necessary to make the meaning of the judgment clear or to make it effectual.” Miller v. State (1898), 149 Ind. 607, 617, 49 N. E. 894.

“So likewise the judgment in the present instance shall' be considered the same as if the judgment has specifically stated that the defendant was sentenced to the Indiana State Prison, subject, however, to be transferred to another penal institution by the Board of Public Welfare.” Mellot v. State (1942), 219 Ind. 646. 652. 653. 40 N. E. 2d 655.